Humphries v Sunshine Coast Regional Health Authority
[1998] QDC 186
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- Humphries v Sunshine Coast Regional Health Authority[1998] QDC 186
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Humphries v Sunshine Coast Regional Health Authority[1998] QDC 186
Humphries v Sunshine Coast Regional Health Authority[1998] QDC 186
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 232 of 1997 |
[Before Forde DCJ]
[LM Humphries v Sunshine Coast Regional Health Authority]
BETWEEN:
LUCILLE MARGUARITE HUMPHRIES | Plaintiff |
AND:
SUNSHINE COAST REGIONAL HEALTH AUTHORITY | Defendant |
JUDGMENT
Judgment delivered: | 10 July 1998 |
Catchwords: | Limitation of Actions Act s. 30(a), (b), s. 31(1) and (2) – extension of period – material fact of a decisive character – nature and extent of condition |
Counsel: | Mr Grant-Taylor for plaintiff/applicant Mr P Munro for defendant/respondent |
Solicitors: | Boyce Garrick for plaintiff/applicant Corrs Chambers Westgarth for defendant/respondent |
Hearing Date(s): | 1 July 1998 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 232 of 1997 |
BETWEEN:
LUCILLE MARGUARITE HUMPHRIES | Plaintiff |
AND:
SUNSHINE COAST REGIONAL HEALTH AUTHORITY | Defendant |
REASONS FOR JUDGMENT - FORDE D.C.J.
Delivered the 10th day of July 1998
This is an application for an extension of a limitation period pursuant to s. 31 of the Limitation of Actions Act 1974. The applicant, Lucille Marguarite Humphries, was born on 13th day of July 1955. On or about 4th day of April 1988 she commenced employment at the Nambour General Hospital. The Sunshine Coast Regional Health Authority was at that time responsible for the management of that hospital. A chronology of events has been provided and that is marked “A” and forms part of these reasons. As accepted by the defendant's counsel, any alleged breach of duty owed by the defendant occurring after 29th day of November 1992, is not statute barred. The application is directed towards any alleged causes of action based upon the negligence of the defendant said to have arisen between April 1989 and November 1992, and is designed to meet the defence pleaded in paragraph 8 of the defendant's Entry of Appearance and Defence. It is not contested by the defence that a cause of action exists in relation to the period after 29th November 1992. Therefore, as the writ is issued and part of the period was within the limitation period, then the relevant date for the purposes of this application is a date sometime after the commencement of the year last preceding the expiration of the period of limitation of the action. The defendant contends that that is September 1994, that is two years after it is submitted that the cause of action occurred perhaps by September 1992. Where proceedings have commenced, it is arguable that the relevant date is 12 months prior to the issue of the writ, namely 29th November 1994. That is the date chosen by the plaintiff's counsel in his submissions. That is, that the applicant must show that the material fact was not within her means of knowledge until subsequent to September or 29th November 1994. For present purposes, the difference is not crucial. The submission by the plaintiff is that the material fact is that the plaintiff realised that her psychological injury was such as to potentially restrict her from the work which she might undertake in the future and then it was not until approximately May 1995 that she realised that she may not be able to return to work as a nurse in a similar position to that which she had held prior to commencing her receipt of workers' compensation. Under s. 31 (2)(b) the plaintiff must establish a right of action apart from the defence founded on the expiration of a period of limitation. Secondly, it must appear to the court “that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action” e.g. viz. September 1994 or 29th November 1994.
Facts
The plaintiff's counsel at the outset accepts that there is evidence from Dr Kimbell in Exhibit LMH9 being a report of 18th February 1998 which would support the conclusion that the plaintiff developed her diagnosed psychiatric disorder during the period of five months or thereabouts immediately prior to the “cutoff date” for her claimnamely 29th November 1992 and that thereafter the condition from which the plaintiff was suffering continued to escalate as a result of events occurring subsequent to 29th November 1992. It was also conceded that the plaintiff was suffering a psychiatric injury by July 1994 (para. 38 of the affidavit). It is argued that the material fact to which the plaintiff points is “the nature and extent of the personal injury” caused to her: see s. 30(a)(iv).
The plaintiff received counselling from Dr Kimbell as early as 8 November 1991. She says it was part of the counselling process which both she and Dr John Grimwood undertook. They were working in the HIV unit at the Nambour General Hospital. It would be fair to say that it was an onerous job with a large increase in the number of patients from six in April 1989 to 110 by August 1994. The plaintiff was on call seven days a week. Dr Grimwood died in 1993 and the burden and responsibility of the AIDS Clinic fell squarely on the plaintiff's shoulder. Dr Grimwood had been quite ill prior to his death and Dr Kimbell states that the stress upon the plaintiff had pre-existed Dr Grimwood's death. The plaintiff swears to the fact that no doctor was appointed to replace Dr Grimwood immediately after his passing. By August 1993 Dr Clare was appointed as a locum, and Dr Sowden in January 1994. It was submitted by the defence as follows:
“As at the 29th November, 1992:
- (i)the plaintiff knew that she was suffering anxiety, stress and panic attacks with psycho-physiological symptoms of anxiety including vomiting and diarrhea (Dr Kimbell's report 18.2.98 - Exhibit 9);
- (ii)the plaintiff had attended for counselling by Dr Kimbell in relation to these symptoms;
- (iii)the plaintiff had had approximately 5 weeks off work because of these symptoms;
- (iv)the plaintiff had experienced episodic feelings of helplessness and hopelessness and the deaths of some of her clients were ‘getting through to her’ (Dr Kimbell's report 18.7.95 - Exhibit 1);
- (v)that these symptoms were as described by Dr Kimbell in his report dated 18th February, 1998 ‘obviously (the) start of the development of the post-traumatic stress disorder and this stress disorder continued to develop and escalate as a result of events occurring subsequent to 29th November, 1992”.
It was submitted that any damage suffered by the plaintiff was not negligible at that stage. Reference was made to the case of Martindale v Burrongh (1997) 1 Qd.R. 243 at 246:
“Here, there was an ongoing established injury, imperceptible in its beginning and incremental nature, that has led to a cumulative result which was then perceptible and identifiable. In turn that has then proceeded to its further development, either of its own accord after ignition or by the further traumatic stimulus from the plaintiff's continuing ingestion of asbestos. The harm done to him in causing the changes to his body that would lead to such a result amounted to an injury. This cannot be insubstantial if it is part of a total process with such a catastrophic result, and it would be artificial to analyse the totality by reference to its discreet parts. In such a gradual continuing process, it would be inapt to apply the same concepts as where the harm is done in one blow and its injurious nature can be identified and established at once”.
This court there was concerned with declaratory relief as to when the cause of action arose. Of more relevance is a case referred to at p. 247 of Harris v Commercial Minerals Ltd (1995-1996) 186 CLR 1, 14(f). The letter dealt with the question of whether the worker was unaware of the nature or extent of the injury suffered. The reasons support the applicant herein. The plaintiff in Harris believed that his condition would remain static and he continued to work.
It was submitted that whilst the plaintiff's condition may have ultimately manifested itself in August 1994 in the plaintiff's inability to continue work, the cause of action which arose in 1992 was added to, cumulatively, ultimately resulting in a more defined and debilitating condition. Reference is made to Ipswich City Council v Smith (unreported Appeal No.5443 of 1997 29th August, 1997). The judgment of Pincus JA was quoted which said it required “that the newly discovered fact is such as to make the difference between not having a worthwhile cause of action and having one”.
It was submitted that at September 1994 the plaintiff knew:
“(i) that she had experienced persistent symptoms of stress and anxiety since 1991;
- (ii)that she had had at least one period of time of approximately 5 weeks off as a consequence of those symptoms;
- (iii)that the symptoms had significantly worsened in about May 1993 with the death of Dr Grimwood;
- (iv)that during the course of 1993 the plaintiff “was continuing to cope but with great difficulty” (Report Dr Kimbell 18.7.95 - Exhibit 1).
It was submitted therefore that a reasonable person with knowledge of those facts, and appropriately advised would have commenced an action, which would have reasonable prospects of resulting in an award of damages which could be regarded as being more than simply negligible. It is submitted that the measure of the damages might have significantly increased, but that this went only to the enlargement of damages and was not a measure of decisiveness.
The report of Dr Kimbell, LMH7, dated 31st January 1995 should be considered. He stated there to the Workers' Compensation Board:
“Since I last wrote to you about Ms Humphries on 26th August, 1994 I have subsequently seen her on 23rd September, 20th October, 17th November, 20th December and 17th January, 1995.
Slowly but surely Ms Humphries was consolidating, becoming less anxious and less stressed, but obviously she is still remarkably vulnerable. When I saw her on 17th January I encouraged her to contact Drysdale Funerals about getting a part-time job. When she did not get this job she became excessively tearful, a reaction out of all proportion to the job rejection, demonstrating her vulnerability. I then suggested to her that she see your rehabilitation officer, preferably on a face to face basis, to discuss her rehabilitation options.
I doubt that Ms Humphries will return to hospital work. She could cope in a clinic where wellness rather than illness prevailed, such as a breast screening clime or, if she had some office skills, her range of options would be broadened; so that there would be chances of her undertaking medical reception cum nursing duties as another possibility.”
Prior to this, Dr Kimbell had written a report dated 26th August 1994. The report was to the Workers' Compensation Board. On page 2 of Exhibit LMH8, he states:
“Hopefully, a few months away from the A.I.D.S. Clinic and then applying for a less stressful clinical nursing position without the same degree of personal responsibility and client or patient disablement, disfigurement or death, Ms Humphries will be able to return to work efficiently without any permanent partial disability. Ms Humphries loves her profession and wants to return to it and if the Board can help in this regard this would be greatly appreciated.”
Therefore, at least as at August 1994 Dr Kimbell was still confident that the plaintiff would be able to return to her work. The plaintiff states that she only realised after July 1994 that she was suffering some psychological injury, but it was not until approximately May 1995 that for the first time she realised that she may not be able to return to work as a nurse. Dr Kimbell had expressed that view in January 1995. It is not clear whether he had spelt that out to the plaintiff at that stage, but the relevant date would have been after September or November 1994 in any event. That is, that if the plaintiff learned after that time that she may not be able to return to nursing work, then it is open to find that it was a material fact of a decisive nature within the meaning of s. 31(2)(a). The defendant submits it is not to the point that the plaintiff had not at that stage ceased work, that is at September 1994. The measure of her damages may have significantly increased, but that is not decisive. It is difficult to accept that submission in view of the comments of Dr Kimbell made in Exhibit LMH8 on 26th August 1994. It seems that by January 1995, he had changed his view about her coping with her job in the AIDS Clinic. Even then he suggested another clinic “where wellness rather than illness prevailed”.
Cause of Action
The matters referred to by the plaintiff need to establish a prima facie case in accord with Wood v Glaxo Austria Pty Ltd (1994) 2 Qd.R. 431. Macrossan CJ said that to satisfy the requirement under s. 31(2)(b) that there is evidence to establish the right of action, an applicant need only point to the existence of evidence which it can reasonably be expected will be available at trial and will, if unopposed by other evidence, be sufficient to prove his or her case. The following facts are relevant:
- (a)The increase in the number of patients.
- (b)The small number of staff available from 1989 when the plaintiff was joined by Dr John Grimwood.
- (c)The fact that there was no assistant provided for the plaintiff until a part-time assistant was appointed in June 1989.
- (d)The ongoing stress of having to test for HIV/AIDS every six or twelve months.
- (e)The feet that the plaintiff was on call seven days per week 24 hours a day.
- (f)The failure by the medical superintendent to respond to concerns about the unit's day to day operations, staffing levels, increased patient numbers and the future direction of the unit.
It is conceded by the defence that there was a cause of action after November 1992. There is little doubt on the evidence that the working conditions of the plaintiff caused her subsequent diagnosis of post-traumatic stress disorder which were associated with increasing anxiety, stress and panic attacks associated with the stress of work prior to November, 1992. I am satisfied that a cause of action has been proved for the purposes of s. 31(2)(b): Martindale v Burrough op.cit.
Findings
I am satisfied that the newly discovered fact, namely that the plaintiff realised in May 1995 that she may not be able to return to work as a nurse, would have added substantially to her damages (Taggart v The Workers' Compensation Board of Queensland (1993) 2 Qd.R. 19). It is clear that the “nature and extent of personal injury” may be a material fact for the purposes of the Act: s. 30(a). The real questions in the present case are whether the nature and extent of her injury resulting from the stress was or was not within her means of knowledge prior to September or November 1994 and whether such facts were of a decisive character: Re Moshnogorsky OS 137/94 Thomas J 4th June 1995. If the plaintiff does show that a material fact was not within her means of knowledge until after the defined period has passed, one then has to ask whether such fact was of a decisive character as required by s. 30(b): see p. 7 Moshnogorsky. If the unknown nature and extent of her symptoms were within her means of knowledge, then she cannot rely on it: s. 31(2)(a). Thomas J stated that the answer in determining the meaning of s. 31(2)(a), 30(d) and 30(b) “will often be met by considering whether a reasonable man having the actual knowledge of the plaintiff would have thought it worthwhile to bring an action if he had taken appropriate advice on those facts”. A material fact I find was the plaintiff not knowing that she would not be able to return to work until say May 1995, then, even if she consulted Dr Kimbell prior to this, he had probably not formed that view until January 1995. This was after the relevant date of say September or November 1994. Prior to January, 1995, I am satisfied that the plaintiff, even if advised, would not have appreciated that bringing an action was a worthwhile exercise or justified. Byers v Capricorn Coal Management Pty Ltd (1990) 2 Qd.R. 306, 308-9; Moriarty v Sunbeam Corporation Limited (1988) 2 Qd.R. 325, 333.
It was submitted by counsel for the plaintiff, over the period of six months subsequent to the commencement of her receipt of workers' compensation in August 1994, the plaintiff had suffered no loss of income because the receipts of workers' compensation fully made up for the wages which she would have been paid had she not ceased duties of her employment. This is relevant in deciding whether a reasonable person would, in light of known material facts, not have commenced proceedings because the net amount resulting from a successful action would be too small to warrant proceedings. The applicant wanted to stay working with the defendant: Moriarty ibid 331, 339. I am satisfied that the nature and extent of the plaintiff's symptoms was a material fact of a decisive character relating to her right of action and that it was not within her means of knowledge until as early as January 1995 or as late as May 1995. In either event, she is still within the relevant one year period prior to the issue of the writ.
Prejudice to defendant
The defendant in it submission refers to the decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The High Court determined that an application made pursuant to s. 31, does not provide that an order for an extension of time be given lightly, nor should the discretion be approached on the basis that the plaintiff is entitled to an extension unless the defendant can show specific prejudice as a result of the delay. It is conceded that the only prejudice in the present case relates to the fact that Dr Grimwood died in May 1993. His death however was prior to the expiration of the normal limitation period in mid-1995 and therefore cannot operate as any significant degree of prejudice. As no other grounds have been put forward in so far as the exercise of the discretion should be refused, any additional delay in this case is not, in my view, a basis for refusing to exercise the discretion.
Breach of Statutory Duty
The applicant also relies on a breach of statutory duty viz. s. 9 of the Workplace Health and Safety Act 1989 i.e. that the defendant failed to ensure her health and safety at work.
The case of Rogers v Brambles Australia Limited (1998) 1 Qd.R. 212, 217 is referred to. Apart from any breach of duty of care at common law, I am satisfied that there is a prima facie breach of statutory duty and that as a result of that breach, the plaintiff has suffered an injury. There is not in those circumstances a need to establish foreseeability of the harm which befell her. St Vincent's Hospital Toowoomba Ltd v Hardy (unreported Court of Appeal 7477/97: 6th May 1998).
It is ordered that the time for commencement of the plaintiff's action be extended to the date upon which the plaintiff's action was commenced, namely 29th November 1995. Costs are to be costs in the cause.
“A”
CHRONOLOGY
13.7.55 | Plaintiff's date of birth |
4.4.88 | Plaintiff commences employment at Nambour Hospital |
10.4.89 | Plaintiff appointed Clinical Nurse Consultant (Level 2) AIDS and commences in the HIV Unit |
8.11.91 | Plaintiff first sees Dr Brian Kimbell |
1992 | Dr Kimbell sees plaintiff on 5 occasions, on 3 occasions 16.7.92, 12.8.92 and 17.9.92 associated with increasing anxiety, stress and panic attacks associated with the stress of work |
| Plaintiff has 5 weeks off during 1992 |
1.3.93 | Plaintiff appointed Clinical Nurse Consultant (Level 3) AIDS |
May 93 | Dr John Grimwood dies |
Feb 94 | Four of plaintiff's patients die in one week (Plaintiff's affidavit para 22) |
July 94 | Plaintiff takes 4 weeks leave |
8.8.94 | Plaintiff returns to work and finds difficulty continuing work in the HIV Unit |
12.8.94 | Plaintiff ceases work |
29.11.95 | Writ issued |